Estado de coisas inconstitucional — STF ADPF 347/2015

Concept and origin

The term estado de coisas inconstitucional (“unconstitutional state of affairs”) was developed by Colombia's Corte Constitucional (first in SU-559/1997; extended to the prison system in T-153/1998) and adopted by Brazil's Supremo Tribunal Federal (STF) in ADPF 347 MC/DF. It denotes a systemic and structural violation of fundamental rights that cannot be remedied through individual case-by-case decisions, but instead requires a coordinated response by several organs of the state.

STF decision of 09.09.2015

In the preliminary decision in ADPF 347 (rapporteur: Justice Marco Aurélio Mello), the STF on 9 September 2015 declared the Brazilian prison system to be an estado de coisas inconstitucional. The reasoning: systemic overcrowding, violence, inadequate medical care, and the failure of rehabilitation objectives. Among other things, the decision orders that detention judges must conduct a detention review (audiência de custódia) within 24 hours of incarceration.

The factual situation

As of 2024, Brazil holds roughly 670,000 prisoners in custodial facilities against an official capacity of about 490,000 places — an occupancy rate of around 136%; individual facilities far exceed this. Including house arrest and electronic monitoring, more than 900,000 people are incarcerated or subject to restrictions on their liberty. Three provisional-measures proceedings of the Inter-American Court of Human Rights against Brazil (Curado, Pedrinhas, Instituto Penal Plácido de Sá Carvalho) document the international perception of the situation.

Relevance for extradition proceedings

ADPF 347 is a central argument in German extradition proceedings in the context of Article 3 ECHR / Article 4 of the EU Charter: Brazil's own declaration by its highest court that the prison system violates fundamental rights creates a presumption of systemic deficiencies that is barely rebuttable. Diplomatic assurances regarding the specific placement of the requested person must therefore be obtained without exception and made concrete on a case-by-case basis (cf. ECJ Aranyosi/Căldăraru, ECtHR Pirozzi v. Belgium).

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